Swensen v. Bender

• Decision Date: 03 March 1902
• Docket Number: 720.
• Citation: 114 F. 1
• Parties: SWENSEN et al. v. BENDER.
• Court: U.S. Court of Appeals — Ninth Circuit

114 F. 1

SWENSEN et al. v. BENDER.

No. 720.

United States Court of Appeals, Ninth Circuit.

March 3, 1902

Herbert Cutler Brown, for plaintiffs in error.

W. C Petchner, for defendant in error.

Before GILBERT and MORROW, Circuit Judges, and HAWLEY, District Judge.

HAWLEY District Judge.

This action was brought by the defendant in error to recover damages for injuries alleged to have been received by him through the negligence of the plaintiffs in error, who were contractors engaged in the construction of the Third Street tunnel in Los Angeles, Cal. A trial of the case before a jury resulted in a verdict in favor of the defendant in error for $1,592.75, upon which verdict a judgment was duly rendered and thereafter a writ of error was taken to have said judgment and all proceedings had in said cause reviewed by this court.

The errors relied upon for a reversal of the judgment relate to the admission of certain testimony, to the action of the court in refusing to grant a nonsuit, to allege errors in giving instructions to the jury, and in refusing to give certain instructions asked for by the plaintiffs in error.

The complaint, after alleging jurisdictional facts, alleges:

'That on or about December 1, 1899, plaintiff was engaged in laboring with pick and shovel inside said tunnel, in the construction thereof, and that at said time plaintiff was unskilled in such work, and unfamiliar therewith; that on said first day of December said tunnel had been constructed inward a distance of about 200 feet; and on account of the increasing distance inward, the unusual character and (un)familiarity of such work to plaintiff, and the darkness of the interior of said tunnel, on a certain day about two weeks preceding said 1st day of December, plaintiff hesitated about proceeding with his work in said tunnel fearing that the same might be dangerous, but the person employed by the defendant to superintend the work of construction of said tunnel, * * * and who at all times herein mentioned was in charge of the work in the interior of said tunnel, and who was in immediate control of plaintiff and his said work, seeing plaintiff's hesitancy to proceed with said work, and knowing that plaintiff feared danger therefrom, ordered this plaintiff, in the presence and hearing, and with the approbation, of defendant Anthon Swenson, to go ahead with his said work, and assured plaintiff that there was no danger therein or thereabout; that thereafter plaintiff was, up to the said 1st day of December, a number of times given such assurance by said person in charge of said work; and that on the said first day of December, while plaintiff was engaged in shoveling inside said tunnel, at a point about 170 feet inward thereof, and while in full reliance on the said assurances of said person so in charge of said work, to the effect that there was no danger in or about the same, and knowing that said assurances had the approbation of these defendants, and while this plaintiff was so engaged in work, unsuspecting danger because of said assurances, a great mass of earth fell from the roof of said tunnel upon plaintiff, crushed him to the ground, and broke his right arm in two places and greatly bruised his left arm, so that for the space of two weeks thereafter plaintiff required the services of a personal attendant to feed him and attend to all his personal wants; and because of the falling upon plaintiff of said earth he was caused great bodily suffering, and the shock that resulted from such injury greatly impaired plaintiff's nervous system, and rendered him sick, so that at this dated he is unable to perform work of any character, and such incapacity will probably continue for the space of two months hence, that said injuries so received threaten to permanently impair the health of plaintiff; that said earth was caused to fall upon plaintiff, as aforesaid, by the neglect and failure of defendants to exercise ordinary care to provide a reasonably safe place for plaintiff to work i,, to do which was a positive duty due from defendants, personally, to plaintiff and because said defendants, in violation of their said duty to furnish plaintiff with a safe place in which to work, negligently and carelessly failed to properly, or at all, brace or timber said tunnel at the point where plaintiff was working under the direction of defendants, when injured, as aforesaid, or to take proper precautions to prevent the falling of said earth from the roof of said tunnel, as aforesaid, and, further, because the dangerous character of the place at which plaintiff was employed when so injured, and of the work at said place, was such as defendants, had they exercised ordinary care and diligence, should have known and apprehended, but whereof this plaintiff was unaware by reason of his inexperience, and by reason of his reliance upon the assurance, given to plaintiff as aforesaid, that no danger need to be apprehended in or about said work; that by reason of the injuries sustained by the plaintiff by the carelessness and negligence of the defendants, as aforesaid, plaintiff has been unable to work since said first day of December, 1899, and thereby has lost 53 days' work to this date, the value whereof per day is $1.75, and the total value whereof is $92.75, to plaintiff's damage in said sum of $92.75; and that by reason of such injuries received as aforesaid, plaintiff has been further damaged in the sum of $5,000.00."""

The answer of the defendants denies these allegations of the complaint, and alleges, in substance, affirmatively, that plaintiff was fully aware and informed of all the dangers of his employment; that defendants exercised every possible precaution for the protection of their employes in said tunnel; that defendants were not guilty of negligence in any respect whatsoever, but that plaintiff's injuries resulted solely and proximately from his own negligence; and, as a further defense, that plaintiff's injuries were the result of the acts of his fellow servants.

The objections made to the various rulings of the court are quite numerous. It will be necessary to specifically notice all of them. Several of the objections present substantially the same question, although made at different times and in different ways.

1. It is claimed that the court erred in admitting evidence, at various times, as to the strength and size of the timbers used in the tunnel, in that it does not appear from the evidence that the accident to plaintiff was caused by defective timbering. While it may be the better practice to first show how the accident occurred, it certainly was not error to overrule the objections upon the promise of counsel for Bender that he would show that the injury resulted from the defective timbering, which was afterwards done. The order in which testimony should be introduced is largely within the discretion of the court. The rule is well settled that an error in admitting evidence without the requisite preliminary, or connecting, proof is cured by the subsequent introduction of such proof; and this is the rule in California, where the case was tried. People v. Shainwold, 51 Cal. 469; Robinson v. Bank, 81 Cal. 106, 111, 22 P. 478. In the light of the issues raised by the pleadings, evidence upon this point was admissible for the purpose of showing negligence upon the part of the plaintiffs in error. Testimony was thereafter given which certainly tended to show that the place where Bender was injured was unsafe, and that the timbering about that point was defective. Touching these questions, Mr. Pugh, who had been engaged for about 10 years in tunnel work, after describing the usual methods of timbering used, and of his familiarity with the tunnel, and of the timbering therein, testified as follows:

'I was foreman of the excavating. I have complained many times to Mr. Swensen of the insufficiency of the timbering; that is, as to the distance apart it was placed. I told him a couple of times that the timbering was not sufficient to protect the ground and the men. He said he thought it was all right. I complained to him maybe a dozen times. The morning of the accident I * * * met him at the entrance of the tunnel, and told him that the place was in a dangerous condition, and that we ought to put, what we call generally, a set of timbers three or four feet apart. And he said to me, 'Pugh, I can't stand it; they must be six feet apart;' and I told him, 'If that is the case, Mr. Swensen, that will put the men in danger; and, another thing, they can't do their work; they are afraid to work.' He then asked me, 'Is there anything we can do there?' I said, 'Well, there is only one thing,-- to put the timbers there to protect the men.' And he suggested something this way, 'Can we put some planks there?' (meaning two by twelves) 'to hide the danger from the men, so that they won't be afraid to work?' And I said, 'You can do that if you will take the responsibility of it.' * * * I had the men to work that morning just clearing out the timbers. The timbers and the dirt were in the way. I did not put the men to work where the danger was until Mr. Swensen came there. I wanted to inform him about the place and conditions before I put the men to work. After he came there he told me to put the men to work, and to get the dirt out. * * * At about half past ten or eleven Mr. Swensen came in. We were talking over some things, and Mr. Bender, he was looking around and looking up that way, and I walked up to him and said, 'Mr. Bender, it seems to me you are afraid to work in here. If you are afraid the best thing you can do is to get out of here, because you are liable to catch a good hurt here.' Mr. Swensen passed me and went into the men, and said, 'Go ahead

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